Pina v. McGrath

August 8, 2005

PABLO PINA, PETITIONER,v.JOE MCGRATH, RESPONDENT.

The opinion of the court was delivered by: Susan Illston United States District Judge

ORDER OF DISMISSAL

INTRODUCTION

Pablo Pina, a prisoner at Pelican Bay State Prison, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is now before the court for consideration of respondent's motion to dismiss the petition as untimely. The court finds that the petition -- filed two decades after the crimes and 16 years after the conviction became final -- was not filed by the deadline in 28 U.S.C. § 2244(d). The motion to dismiss will be granted and the petition dismissed.

BACKGROUND

Following a jury trial in Santa Clara County Superior Court in 1986, Pablo Pina was convicted of murder and first degree burglary with the use of a firearm. He was sentenced in April 1986 to a term of 38 years to life in prison. Pina appealed. The California Court of Appeal affirmed the judgment of conviction in 1988. Pina did not petition for review in the California Supreme Court.

Pina filed several motions and habeas petitions in state courts relating to his conviction. One of the main themes of Pina's opposition to the pending motion to dismiss is that any delay in getting to federal court was due to the fact that he has been trying for years to obtain copies of tapes of interviews with witnesses and police reports in his case so he could prepare a proper habeas petition. This requires an exploration of the particular motions and petitions he filed in state court.

On February 21, 1991, Pina filed a "motion for transcripts" in his criminal case in the Santa Clara County Superior Court. The motion did not ask for a copy the tapes or police reports or evidence but instead asked for a copy of the "reporter's transcripts, clerk's transcripts and judgment roll" from his criminal case. See Resp. Exh. 2, p. 2. The motion was denied on March 8, 1991 because Pina had not made a particularized showing of a need for the transcripts.

On October 11, 1994, Pina filed in the Santa Clara County Superior Court a document that consisted of a habeas petition cover sheet and a 2-page "motion for records and transcripts for habeas corpus proceedings." See Resp. Exh. 4; Opposition, Exh. B, pp. 36-38. The petition was denied as untimely on December 27, 1994. Like the 1991 motion, the 1994 filing asked for a copy of the "report's [sic] transcripts, clerks transcripts and judgment roll" and did not request a copy of evidence including tapes of interviews and police reports. Id. at 37.

On March 2, 1995, Pina filed a habeas petition in the California Supreme Court. The petition was denied on the merits and for lack of diligence on March 30, 1995. Resp. Exh. 6.

The first hint that Pina was trying to obtain police reports and perhaps other evidence is found in a March 25, 1999 letter Pina allegedly wrote to the public defender's office. See Opposition, p. 42. That letter did mention that Pina had tried to obtain the evidence in 1990-1991 from the public defender's office, although it doesn't explain what he had been doing in the eight intervening years between the earlier request and the current letter.

In May 1999, Pina filed a habeas petition in the Santa Clara County Superior Court. The petition was denied on May 25, 1999, because "[t]he alleged 'new evidence' is not new nor is there a substantial reason why the evidence was not brought forth sooner. The alleged 'new evidence' that petitioner refers to are interrogation and witness tapes that petitioner alleges were made near the time of the original criminal investigation. Even the petitioner acknowledges that both the petitioner's attorney and the prosecution were well aware of the tapes at that time." Resp. Exh. 7, pp. 1-2.

On November 6, 2000, Pina filed a habeas petition in the California Court of Appeal. The petition was denied on January 22, 2001. Resp. Exh. 8.

On February 2, 2001, Pina filed a petition for writ of habeas corpus in the California Supreme Court. The petition was denied on June 27, 2001. Resp. Exh. 9.

In 2003, Pina filed another habeas petition in Santa Clara County Superior Court. The petition was denied on October 10, 2003 because it was an attempt to file claims in a piecemeal fashion without adequate justification. Resp. Exh. 10. The court explained that Pina's reliance on the recent passage of California Penal Code § 1054.9 regarding post-conviction discovery did not aid him because that ...

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